On July 12, the Senate Judiciary Committee will hold a confirmation hearing for Christopher Wray, Trump’s nominee to be director of the FBI. The hearing is likely to be dominated by questions about the fate of Wray’s predecessor, James Comey, and whether Wray will make sure investigations concerning the Trump campaign’s alleged ties to Russia remain untrammeled by executive meddling. While the circumstances under which Comey was dismissed raise important questions about how his successor would handle investigating the man who appointed him, the hearings are also an opportunity to defend the First Amendment.
The FBI has a troubled understanding of the First Amendment. While conventional narratives reduce FBI spying on political speech to a fact of the Hoover era or as part of an overzealous response to the 9/11 attacks, the truth is that the FBI has continuously devoted significant resources to monitoring purely political speech. In roughly the last year alone, FBI agents or FBI Joint Terrorism Task Force agents have made house visits to Black Lives Matter, Occupy Cleveland, and Standing Rock activists. Before the election, FBI agents conducted a serious of home visits to Muslim Americans that smacked of voter intimidation.
The FBI has no statutory charter outlining the scope of its authority and power. While such a charter was considered after the Church Committee uncovered systematic political persecution by the FBI, Congress ultimately passed on the opportunity, instead allowing the attorney general to self-regulate the FBI. An amendment to the Violent Crime Prevention Act of 1994 prohibited the FBI from investigating purely First Amendment activity, but Congress swiftly repealed it. As a result, oversight hearings remain one of the only legislative checks on the FBI.
This oversight has been lax in recent years. Comey faced little pushback as to why the FBI conducted counterterrorism investigations into political organizations its undercover operatives conceded were nonviolent and peaceful, such as School of the Americas Watch and Occupy Wall Street. The official reason is that, while these organizations were peaceful, unknown actors with their own agendas could at some point in the future hijack these movements. Yet that is true of any group, be it one dedicated to promoting a more just and peaceful US foreign policy or a chess club. The question then arises: Why does the FBI continuously single out groups working for peace, economic, and racial justice, unless it views such political views as being a proxy for suspicion?